Citation Nr: 0815646
Decision Date: 05/13/08 Archive Date: 05/23/08
DOCKET NO. 07-08 556 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a right hip
disorder.
2. Entitlement to service connection for a right knee
disorder.
3. Entitlement to service connection for a disorder of the
right leg, other than the knee or hip.
4. Entitlement to service connection for tinnitus.
5. Entitlement to service connection for a sleep disorder.
6. Whether new and material evidence has been received to
reopen a claim for service connection for a bilateral arm
disorder.
7. Entitlement to a total disability rating for compensation
based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on active duty from January 1942 to
October 1945. He served in the European Theater of
Operations during World War II and is a recipient of the
Purple Heart.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from adverse action by the
Department of Veterans Affairs (hereinafter VA) Regional
Office in North Little Rock, Arkansas, (hereinafter RO).
In February 2008, a hearing was held before the Veterans Law
Judge signing this document, who was designated by the
Chairman to conduct the hearing pursuant to 38 U.S.C.A.
§ 7107(c) (West 2002).
FINDINGS OF FACT
1. There is an approximate balance of the positive and
negative evidence as to whether a right hip disorder and
right knee disorder were incurred during combat operations in
service.
2. There is no competent evidence linking a sleep disorder
or a right leg disorder not involving the knee or hip to
service.
3. A current disability associated with tinnitus is not
currently demonstrated.
4. Service connection for a bilateral arm disorder was
denied by a September 2004 rating decision to which the
veteran was notified in that month; the veteran did not
complete an appeal with respect to this denial and this is
the only final rating decision addressing this issue on any
basis.
5. Evidence received since the September 2004 rating
decision does not raise a reasonable possibility of
substantiating the claim for service connection for a
bilateral arm disorder.
6. Prior to this decision, the service connected
disabilities included hearing loss, rated 40 percent
disabling; post-traumatic stress disorder, rated as 30
percent disabling; residuals of a gunshot wound the back,
recurrent sinusitis, residuals of frostbite of the left foot,
and residuals of frost bite of the right foot, each rated 10
percent disabling; and residuals of frostbite of both hands
and a lip injury, each rated noncompensable; the service
connected disabilities prior to this decision combined to a
rating of 70 percent.
7. The veteran reports education through one year of college
and work experience as a self employed salesman; he reported
he became too disabled to work in November 1977.
8. It is not shown by the preponderance of the evidence that
the veteran's service connected disabilities have not
precluded him from securing or following a substantially
gainful occupation.
CONCLUSIONS OF LAW
1. Resolving all reasonable doubt in the veteran's favor, a
right hip disorder and right knee disorder were incurred in
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).
2. A sleep disorder, tinnitus and a right leg disorder not
involving the knee or hip were not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002);
38 C.F.R. § 3.303 (2007).
3. That portion of the September 2004 rating decision
denying service connection for a bilateral arm disorder is
final. 38 U.S.C.A. § 7105(c) (West 2002);
38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004).
4. Evidence submitted to reopen the claim of entitlement to
service connection for a bilateral arm disorder is not new
and material, and therefore, the claim is not reopened.
38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104,
3.156(a) (2007).
5. Resolving all reasonable doubt in the veteran's favor,
the criteria for a total rating for compensation purposes
based upon individual unemployability are met. 38 U.S.C.A.
§§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341,
4.16 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2005)), imposes obligations on VA in terms of its duties to
notify and assist claimants. First with regard to the duty
to notify, prior to the rating action which gave rise to this
appeal, in letters dated in May 2005 and June 2006, the RO
advised the claimant of the information necessary to
substantiate the claims at issue. He was also informed of
his and VA's respective obligations for obtaining specified
different types of evidence. See Quartuccio v. Principi, 16
Vet. App. 183 (2002). He was also told to provide any
relevant evidence or information in his possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). He was provided with information regarding
ratings and effective dates. See Dingess v. Nicholson, 19
Vet. App. 473 (2006). The notice provided the veteran was
also fully compliant with the notice requirements for the
petition to reopen his claim for service connection for a
bilateral arm disorder set forth in Kent v. Nicholson, 20
Vet. App. 1 (2006). As such, the Board finds that the duty
to notify has been satisfied.
VA also has a duty to assist the veteran in the development
of the claim. This duty includes assisting the veteran in
the procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has
obtained the service medical records and made reasonable
efforts to obtain relevant post-service records adequately
identified by the veteran. Specifically, the information and
evidence that have been associated with the claims file
includes VA treatment records, reports from VA examinations,
and the veteran's own statements and evidence he presented,
to include lay statements supporting his contentions.
Thus, the Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). Significantly, neither the appellant
nor his representative has identified, and the record does
not otherwise indicate, any additional existing evidence that
is necessary for a fair adjudication of the claims that has
not been obtained. Hence, no further notice or assistance to
the appellant is required to fulfill VA's duty to assist the
appellant in the development of the claims. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
II. Legal Criteria/Analysis
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. § 11101; 38 C.F.R. §§ 3.303(a), 3.304. There are
some disabilities, including arthritis, for which service
connection may be presumed if the disorder is manifested to a
degree of 10 percent or more within one year of separation
from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137;
38 C.F.R. §§ 3.307, 3.309.
Where there is a chronic disease shown as such in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. 38 C.F.R. §
3.303(b). When a condition noted during service is not shown
to be chronic, or the fact of chronicity in service is not
adequately supported, then a showing of continuity of
symptomatology after discharge is required to support the
claim. Id. Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The Court has held that, in order to prevail on the issue of
service connection, there must be medical evidence of: (1) a
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet. App.
247, 253 (1999).
A. Service Connection Claims
The veteran has contended, to include in testimony to the
undersigned, that he sustained multiple injuries on the right
side of his body in a tank accident during his World War II
service during the Battle of the Bulge. The veteran's DD
Form 214 reflects service in the European Theatre of
Operations in World II during a time period that includes
when the Battle of the Bulge took place, and reflects service
in the Ardennes, the location of this battle. This document
also reflects that the veteran was the recipient of the
Purple Heart. He has also submitted pictures that appear to
document the service as described by the veteran, and one of
these pictures depicts a tank that has crashed into a tree in
deep snow. In addition, statements from service comrades of
the veteran supporting the veteran's assertions with regard
to the in-service tank accident have been submitted.
The service medical records do not document treatment for
right hip or right knee injuries, but the veteran testified
at the hearing before the undersigned that such treatment
could not have been provided given the rigors of his service
in the Battle of the Bulge. When a wartime veteran alleges
he suffers disability due to an injury incurred in combat, 38
U.S.C.A. § 1154(b) must be considered, permitting the
veteran's undocumented assertions regarding combat-related
injuries to be accepted as true if consistent with the time,
place and circumstances of such service. Collette v. Brown,
82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8 Vet. App.
563 (1996). In this case, the Board accepts as true the
statements of the veteran with regard to the asserted in-
service injuries sustained in the tank accident, as the
record clearly documents that he was exposed to combat, and
his statements are consistent with the nature of the
described service during the Battle of the Bulge.
The analysis required by 38 U.S.C.A. § 1154(b) applies only
as to whether an injury or disease was incurred or aggravated
at that time, i.e., in service. It does not apply to the
questions of whether there is a current disability or a nexus
connecting any current disability to service. See Collette,
Gregory, supra. In this case, there is not of record a nexus
opinion addressing whether a current right hip and right knee
disorder is the result of service. However, unless the
preponderance of the evidence is against a claim, it cannot
be denied. Gilbert, 1 Vet. App. at 49. In this regard, the
record does not reveal any competent evidence indicating that
right hip and right knee disorders are not the result of
service.
The record reflects complaints of pain in the right knee and
legs from as early as shortly over one year after service.
(See December 1946 VA examination reports). The evidence
also reflects, from the most recent VA examination afforded
the veteran in July 2006, current diagnosed right hip and
right knee disorders listed as residuals of a right hip
injury with tendonitis and residuals of an injury to the
right knee with degenerative arthritis. As such, and given
the testimony to the undersigned which has been accepted as
true with regard to the in-service injuries to the right side
of the body in a tank accident, the Board finds that there is
an approximate balance of the positive and negative evidence
as to whether the right hip and right knee disorders
currently demonstrated are the result of service. Thus,
without finding error in the RO's action, the Board will
exercise its discretion to find that service connection for a
right hip and right knee disorder may be granted.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.
With respect to an injury to the right leg not involving the
right knee or hip, the Board finds no evidence of a current
disability in the right leg other than that described in the
hip and knee on the July 2006 VA examination. As such,
service connection for a right leg disability not involving
the right hip or leg must be denied. See Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski,
3 Vet. App. 223 (1992) (Standing for the proposition that the
fact that a condition or injury occurred in service alone is
not enough for a grant of service connection; there must be
current disability resulting from that condition or injury.)
In making the above determination, the Board notes that it is
unclear if the RO denied the veteran's claim for service
connection for a right leg disorder on the basis that new and
material evidence had not been received to reopen this claim,
which was originally denied by a September 2004 rating
decision. However, the Board construes a March 2005
statement received from the veteran to represent a timely
notice of disagreement with the denial of service connection
for a right leg disorder by the September 2004 rating
decision, thus obviating the need for him to submit new and
material evidence to "reopen" his clam. By this action,
the veteran is thus being afforded the greater benefit of a
merits-based decision rather than a decision based on
reopening. The veteran has been afforded the laws and
regulations for a merit-based decision, and presented a
merit-based argument. Accordingly, the appellant is not
prejudiced by this action. See Bernard v. Brown, 4 Vet. App.
384, 393 (1993).
Turning to the claims for service connection for tinnitus and
a sleep disorder, the veteran denied having tinnitus at a
July 2006 VA examination and there is otherwise no evidence
of a current disability associated with tinnitus. As such,
service connection for this condition must be denied. See
Rabideau, Brammer, supra.
With respect to a sleep disorder, to the extent that it is a
manifestation of the veteran's post-traumatic stress
disorder, for which service connection has been granted, a
separate award of service connection for this condition would
be precluded by the rule against "pyramiding," or
compensating the veteran twice for the same symptomatology.
Brady v. Brown, 4 Vet. App. 203, 206 (1993); 38 C.F.R. § 4.14
(2007). To the extent a sleep disorder is considered to not
be attributed to the veteran's post-traumatic stress
disorder, there is no evidence of a sleep disorder during
service and no competent evidence demonstrating that the
veteran has a current sleep disorder that is related to
service. As for the veteran's assertions that a sleep
disorder is related to service, such assertions cannot be
used to establish a claim as a layperson is not qualified to
render a medical opinion regarding the etiology of disorders
and disabilities. See Cromley v. Brown, 7 Vet. App. 376, 379
(1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992)
(finding that competent medical evidence means evidence
provided by a person who is qualified through education,
training, or experience to offer medical diagnoses,
statements, or opinions). As such, the Board finds that the
negative evidence outweighs the positive evidence, and that
the claim for service connection for a sleep disorder must
therefore be denied.
B. New and Material Evidence Claim
Service connection for a bilateral arm disorder was denied by
a September 2004 rating decision to which the veteran was
notified in that month. The veteran did not complete an
appeal with respect to this denial; as such, it is final. 38
U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302,
20.1103 (2004). This is the only final rating decision
addressing this issue on any basis. The RO denied the
veteran's claim based on a finding that there was no evidence
during service of a bilateral arm disorder and that the
veteran had presented no evidence linking a current bilateral
arm disorder to service.
Pursuant to 38 U.S.C.A. § 5108, VA must reopen a finally
disallowed claim when new and material evidence is presented
or secured with respect to that claim. Kightly v. Brown, 6
Vet. App. 200 (1994). Only evidence presented since the last
final denial on any basis, either upon the merits of the
case, or upon a previous adjudication that no new and
material evidence had been presented, will be evaluated, in
the context of the entire record. Evans v. Brown, 9 Vet.
App. 273 (1996).
"New" evidence means existing evidence not previously
submitted to VA. "Material" evidence means existing
evidence that by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
38 C.F.R. § 3.156.
The evidence of record before the adjudicators at the time of
the September 2004 rating decision included the service
medical records, which, while reflecting treatment for a
shell fragment wound in the right scapular region for which
service connection has been granted, do not otherwise reflect
any treatment for a bilateral arm disorder. The entrance
examination did note a non disabling mild subluxation of the
left sternoclavicular joint. A bilateral arm disorder was
not described on the October 1945 separation examination.
Also of record at the time of the September 2004 rating
decision were reports from a December 1946 VA examination, at
which time the veteran voiced no complaints about an arm
disorder. He did indicate to the examiner that he injured
his left clavicle "many years ago" resulting in loosening
of the joint pain, but that the joint no longer bothered him
if he made it a practice not to lift the arm above his head.
The examination at that time revealed a mild click in the
clavicular joint but no excessive mobility was noticed. The
diagnoses included an old strain of the left sternoclavicular
joint that was mildly symptomatic. No pertinent arm
complaints were presented at a May 1960 VA examination.
Additional evidence before the adjudicators in September 2004
included VA outpatient and examination reports dated through
June 2004. While bilateral carpal tunnel syndrome was
demonstrated on an August 1998 electromyogram, none of these
records contain any competent evidence linking an arm
disorder to service. Also of record at the time of the
September 2004 rating decision was a statement from a person
who said he served with the veteran indicating that the
veteran injured his right leg, knee and hip in a tank
accident during the Battle of the Bulge. In a June 2004
statement received from the veteran, he stated that injuries
sustained in the tank accident included one to his right
shoulder, and that he was still having "trouble" with this
shoulder as well as his right arm.
Reviewing the evidence added to the claims file subsequent to
the September 2004 rating decision, additional VA outpatient
treatment records, dated through April 2005, have been
obtained, none of which contain clinical evidence of
bilateral arm pathology. The veteran was also afforded a VA
examination in July 2006 as noted above, and the reports from
this examination do not reflect complaints from the veteran
describing a bilateral arm injury due to a tank accident or
any other in-service cause, and a bilateral arm disorder was
not diagnosed at that time. Clearly, such evidence not
describing a current bilateral arm disorder does raise a
reasonable possibility of substantiating the claim for
service connection for such a condition. As such, it is not
"material." This evidence also does not suggest the
presence of a right shoulder disorder, other than that
associated with the service connected gunshot wound for which
service connection has already been granted. Therefore,
while the RO has characterized the claim to reopen the
previously denied claim for service connection for a
bilateral arm disorder to be "now claimed as a right
shoulder condition," there simply is no current medical
evidence of right shoulder disability, separate and apart
from that resulting from the service connected gun shot
wound, for which service connection may be granted. See
Rabideau, Brammer, Brady, supra.
As for additional information added to the record since the
September 2004 rating decision, the veteran's testimony to
the undersigned at the February 2008 hearing appears to
reference an arm injury in connection with the tank accident.
To the extent that such testimony is duplicative of the
statements submitted by the veteran in June 2004 with regard
to the tank accident, such testimony would not represent
"new" evidence. The additional evidence also includes lay
statements submitted on behalf of the veteran from persons
who served with him that are essentially duplicative of the
September 2004 lay statement referenced above. Nonetheless,
even if these statements, and the veteran's testimony, are
considered to be "new," they are not "material," as they
do not raise a reasonable possibility of substantiating the
claim because it does not contain the evidence necessary for
a grant of service connection for a bilateral arm disorder;
namely, competent evidence from a medical professional
suggesting that there is a current bilateral arm disorder
that is etiologically linked to service. See Routen,
Espiritu, Hickson, Collette, Gregory, supra.
In short, none of the additional evidence submitted since the
September 2004 rating decision is new and material, and the
claim of entitlement to service connection for a bilateral
arm disorder is thus not reopened. As new and material
evidence to reopen the finally disallowed claim for service
connection for a bilateral arm disorder has not been
submitted, the benefit of the doubt doctrine is not
applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
C. TDIU
VA will grant a total rating for compensation purposes based
on unemployability when the evidence shows that the veteran
is precluded, by reason of service-connected disabilities,
from obtaining and maintaining any form of gainful employment
consistent with his education and occupational experience.
38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable
regulations, benefits based on individual unemployability are
granted only when it is established that the
service-connected disabilities are so severe, standing alone,
as to prevent the obtaining and retaining of gainful
employment. Under 38 C.F.R. § 4.16, if there is only one
such disability, it must be rated at least 60 percent
disabling to qualify for benefits based on individual
unemployability. If there are two or more such disabilities,
there shall be at least one disability ratable at 40 percent
or more, and sufficient additional disability to bring the
combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
Where these percentage requirements are not met, entitlement
to benefits on an extraschedular basis may be considered when
the veteran is unable to secure and follow a substantially
gainful occupation by reason of service-connected
disabilities, and consideration is given to the veteran's
background including his employment and educational history.
38 C.F.R. §4.16(b). The Board does not have the authority to
assign an extraschedular total disability rating for
compensation purposes based on individual unemployability in
the first instance. Bowling v. Principi, 15 Vet. App. 1
(2001). In determining whether unemployability exists,
consideration may be given to the veteran's level of
education, special training, and previous work experience,
but it may not be given to his age or to any impairment
caused by nonservice-connected disabilities. 38 C.F.R. §§
3.341, 4.16, 4.19.
Prior to this decision, service connection was granted for
hearing loss, rated 40 percent disabling; post-traumatic
stress disorder, rated as 30 percent disabling; residuals of
a gunshot wound the back, recurrent sinusitis, residuals of
frostbite of the left foot, and residuals of frost bite of
the right foot, each rated 10 percent disabling; and
residuals of frostbite of both hands and a lip injury, each
rated noncompensable. The service connected disabilities
combine to 70 percent. Thus, as there is one service-
connected disability ratable at 40 percent or more and the
combined service-connected disability rating is 70 percent,
the schedular requirements for a total rating for
compensation purposes based upon individual unemployability
are met.
By way of a VA Form 21-8940 (Veteran's Application for
Increased Compensation Based on Unemployability) signed in
December 2005, the veteran reported education through one
year of college and work experience as a self employed
salesman. He stated that he became too disabled to work in
November 1977.
At the February 2008 hearing before the undersigned, the
veteran and his wife presented persuasive testimony as to the
degree to which his service connected disabilities have
limited his ability to work. As such, and in light of the
number and severity of the disabilities for which service
connection has been granted, to include by the decision
herein, and in the absence of any competent evidence
demonstrating that the veteran's service connected
disabilities have not precluded him from securing or
following a substantially gainful occupation, the Board finds
there to be an approximate balance of positive and negative
evidence as to whether service connected disability has
precluded him from securing or following a substantially
gainful occupation when such disability is assessed in the
context of the veteran's occupational background and level of
education. As such, the claim for service connection for
TDIU may be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R.
§§ 3.102, 4.16; Gilbert, supra.
ORDER
Entitlement to service connection for a right hip disorder is
granted.
Entitlement to service connection for a right knee disorder
is granted.
Entitlement to service connection for a disorder of the right
leg, other than the knee or hip, is denied.
Entitlement to service connection for a sleep disorder is
denied.
Entitlement to service connection for tinnitus is denied.
New and material having not been received, the appeal to
reopen the claim for service connection for a bilateral arm
disorder is denied.
Entitlement to TDIU is granted, subject to regulations
governing the payment of monetary awards.
____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs